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2014 DIGILAW 1273 (PAT)

Beena Kumari Sinha v. State of Bihar

2014-12-22

ASHUTOSH KUMAR

body2014
Ashutosh Kumar, J. – Heard Mr. Sanjeev Ranjan, learned Advocate for the petitioner and Mr. Jharkhandi Upadhyay for the State. 2. The petitioner, who is a doctor by profession, has challenged the order dated 17.5.2008, passed by the learned Judicial Magistrate, Bhgalpur, in connection with Complaint Case No. 1853 of 2004, whereby cognizance has been taken under Section 323 of the Indian Penal Code. 3. Opposite Party No. 2 initially lodged a complaint against the petitioner for offence under Sections 304A of the Indian Penal Code and Sections 3 / 4 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act. It was alleged by the Opposite Party No. 2 that because of the negligent behaviour of the petitioner, the sister of Opposite Party No. 2 and her newly born child died. The aforesaid complaint was sent under Section 156 (3) of the Code of Criminal Procedure, for initiation of a regular case. This gave rise to SC/ST Agamkuan PS Case No. 5 of 2001. The police after investigation submitted final report false stating that no case of negligence is made out. However, the protest petition, which was on record, was moved by Opposite Party No. 2. 4. The learned court below after taking into account solemn affirmation of the complainant and the deposition of the four witnesses, offered on behalf of the prosecution, rejected the basic prosecution version of allegation of putting Opposite Party No. 2 and his family members to disrepute by taking their caste name and negligence in treating the deceased lady and her son. However, by order impugned, without adverting to any reason for doing so, the court below took cognizance against the petitioner under Section 323 of the Indian Penal Code. 5. Learned Counsel submitted that the averments made in the protest complaint reveal that the petitioner had been a doctor at the time of delivery of the child of the petitioner also when his wife had become pregnant. The story narrated in the complaint petition further states that the sister of the Opposite Party No. 2 was admitted in the clinic of the petitioner. The relatives of the deceased were made to understand that there is a breech foetus and necessary resuscitation measure was taken by the clinic staff but to no avail. 6. The story narrated in the complaint petition further states that the sister of the Opposite Party No. 2 was admitted in the clinic of the petitioner. The relatives of the deceased were made to understand that there is a breech foetus and necessary resuscitation measure was taken by the clinic staff but to no avail. 6. It is submitted that only when because of misfortune the pregnant lady and her child died that the Opposite Party No. 2 started putting pressure on the petitioner for some kind of compensation. When this was not acceded to, Opposite Party No. 2 chose to lodge this case against the petitioner. 7. It has been submitted on behalf of the petitioner that, that apart, the primary allegation of the Opposite Party No. 2 of being negligent in treating the sister of Opposite Party No. 2 and her newly born child could not be substantiated and precisely for this reason no cognizance was taken under the corresponding section of Indian Penal Code which deals with offence of negligence. Two of the four witnesses offered on behalf of the Opposite Party No. 2 did not confirm the accusation of the petitioner being abusive towards the relatives of the deceased. The fact that wife of Opposite Party No. 2 was treated earlier by the petitioner, it can, as has been argued, safely be presumed that Opposite Party No. 2 was a patient of the petitioner for a long time. 8. In that background, suddenly raising the allegation of intemperate behaviour using caste name against own patient does not appear to be trustworthy. It appears from the reading of the record that the allegations have been magnified so as to open up a bargaining counter. 9. Learned Counsel for the petitioner next submitted that this Court is only beset with the requirement of deciding whether offence under Section 323 IPC is made out. True it is, the materials available on record, do not make out a case under Section 323 IPC. 10. Considering this aspect of the matter, the order taking cognizance dated 17.5.2008 is held to be un-sustainable in the eyes of law. It is accordingly set aside. 11. This application is allowed.